It seems to me that just the pardon power by itself is fundamentally incompatible with democracy and the rule of law.
It's like saying you're a pacifist... except for Tuesdays when you go on a weekly killing spree.
I imagine that if we can survive and progress long enough to have real democracy and rule of law, our present system will be viewed a transitional period that, for all its very real improvements, was still structurally closer to feudalism than actual democracy.
There's no choice in a democracy but to have something like the pardon power.
The reason is that we need protection also from the power of judicial branch, which is abusable like any branch with power. Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone. In a democracy, all branches are checked by the others, and this is a necessary check on the judicial branch. It could be done differently (approval by Congress or some third party?), but not having a check is dangerous.
Now suppose the kid who shot the people in Kenosha gets a pardon (I don't know about jurisdiction). What would be the check on presidential power in that case?
I think the pardoning thing is absolutely wrong in the US form, where it is used quite often. I think it's just crazy that you can do something illegal but if you can just talk one guy into it, you are off the hook.
The only case I see where it makes sense is that there's some corner case that everyone can agree on. But then it would involve more than just one guy on his last day in office.
The kid could always be charged on some other state-level technicality. These charges would be state-level and therefore not subject to Presidential pardon.
That said, such a limited abuse would not justify ditching the pardon power. History has shown that not having a pardon power would have been impossible - the civil war would have lasted for decades, there would have been mass charges years after Vietnam, without the option of pardon Nixon may never have resigned, etc. A lot of these aren't corner cases, but they were necessary to still have a country.
IMHO, the by far best solution is to have it in a more limited form so it requires more than one guy.
Congress granting pardons is different. It's limited in scope and has a higher bar, since it requires the assent of a majority of the legislative branch.
What's chaotic about punishing a lawbreaking president? Sounds pretty lawful to me. It's how healthy democracies are supposed to operate. Pardoning Nixon set a bad precedent.
It's not so limited in scope, Congress could pardon half the felonies in the law book. It's only limited because Congress does yet have the authority to pardon people already in bars (or does it? I could be wrong here), but that could be changed.
As for Nixon, not pardoning him would have led to some very messy politics (does he even quit?) in the middle of the oil crisis/price controls/etc. I have no idea how it would have played out, but the US needed at the time a functioning presidency (more than usual).
Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone.
Technically, all judges can be impeached, and all judges other than SCOTUS can be appealed (there's actually a specific writ you can file claiming to be jailed unjustly, habeas corpus).
In practice, impeachment hasn't proven to be much of a check on judicial power (recall elections have probably been more effective overall), but I think the appeals process more or less works and I don't think the pardon power has added much, on balance. I think unilateral pardon power by a political official has proven sufficiently ripe for abuse that I would even support adding limits like some kind of Congressional check, but it's definitely nowhere near a top priority.
Obviously the appeals process has had plenty of failings too, the Japanese internment camps being the most famous example, another high-profile one is Lincoln suspending habeas corpus during the Civil War.
Technically, all judges can be impeached, and all judges other than SCOTUS can be appealed (there's actually a specific writ you can file claiming to be jailed unjustly, habeas corpus).
This doesn't vacate the original judgement, which is nigh-unappealable if made by SCOTUS. There are also cases when impeachment isn't warranted but a pardon still makes sense (I gave examples in another post in the thread). I think adding checks on pardon power would be enough to deal with abuse of pardon. You're right this isn't a top priority.
I don't think SCOTUS in its entire history has ever directly ordered anyone jailed, only upheld lower court rulings jailing someone or overturning opinions that concluded someone shouldn't be jailed. So at most that's recourse within the judicial system failing, not lack of recourse; obviously, pardon power can "fail" as recourse too, if anything, not providing recourse to injustice is the normal operation of pardon power.
If my choices were status quo and status-quo-except-pardon-power-is-abolished, I would probably prefer the status quo, because law enforcement overreach is currently a bigger problem than abuse of pardon power. But you made a much stronger statement: "There's no choice in a democracy but to have something like the pardon power." I disagree with that, I could easily imagine a much more just and fair democratic system where all recourse to judicial overreach still involved a decision by a judge at some point.
Well, I think the judicial/legal branch can overstep like any other, and needs some checks too. Letting everything be decided by a judge with a lifetime position risks the court forcing its position on an unwilling populace (think of SCOTUS's original position during the New Deal). But impeachment/packing is a radical move (itself a power play which can be just as unjustified), and doesn't necessarily help the accused as much.
As I wrote, if I had a say on this I'd go for a more limited pardon power than the current situation. I suspect our positions in the end aren't too different.
Sure, the ability for someone to be pardoned should exist, but it's complete nonsense that the President alone controls it. I agree with you, Congress should also take a vote, so that the power to pardon doesn't rest on a single person.
> There's no choice in a democracy but to have something like the pardon power.
Not necessarily. IIUC the American President's pardon power is based on the British monarch's pardon power. The role of President was conceived (consciously or unconsciously) as an elected, non-hereditary monarch. He had many of the same powers - veto, commander of the military.
> Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone.
That would require every judge in every court up to the highest court to be bad.
Actually, it's merely a prerogative granted via holding the role of the Chief Executive. You get discretion to enforce or grant amnesty etc, because it's your job to set the priorities.
The pardon power, however, was never traditionally treated lightly, as it's use practically guaranteed you'd be right ticking off a potentially very large swathe of the populace by upsetting the smooth operation of the other branches. It was a check, undoubtedly, but one best used only wisely if for no other reason than to reassure the populace there was a commitment to faithfully executing the laws of the land, rather than everyone being at the mercy of a capricious and unstable tyrant/nepotist/other type of person you wouldn't want to see in the highest position of authority in the country.
Most people think of presidential pardons, but there are also pardons from governors that happen regularly as well, though not as public given their smaller stage.
The general amnesty granted to Confederate soldiers at the end of the Civil War, though not without controversy, was an important step in the reunification of the nation.
The standard answer, of course: a war, especially after a national civil war, prosecuting everyone who participated in the enemy's side will be a disaster.
To the extremely limited and minimal extent that whistleblowers have been pardoned, good on that president/governor, but I think it is atrocious that whistleblower protection relies on pardon power—we need much, much stronger protections for whistleblowers, in my opinion.
I think 90% of people are basically good but don't really want to stick their neck out of line—which means rules by themselves will never constrain the 5% of people that are malevolent. We need to empower the other 5% of people who are willing to stick their neck out to do the right thing. That includes institutionally empowering whistleblowers.
Snowden committed a crime, sure, prosecute him—just give him a fair trial, for goodness' sake.
Biden's promising to pardon all non-violent drug crimes, is he not? Though not historical, if it were to happen that could mark a turning point for our country.
Though one could also use that same pardon power to avoid prosecution for domestic terrorists that support your agenda or crimes of election fraud. So I'm definitely on the side of revoking one person's power to override the entire judiciary for arbitrary reasons.
> Biden believes no one should be in jail because of cannabis use. As president, he will decriminalize cannabis use and automatically expunge prior convictions. And, he will support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts.
> Biden believes that no one should be imprisoned for the use of illegal drugs alone. Instead, Biden will require federal courts to divert these individuals to drug courts so they receive treatment to address their substance use disorder.
> A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called "executive clemency") does not "erase" the event; rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by the President of the United States for federal offenses
I have no clue how Biden can promise to automatically expunge prior convictions if only judges can expunge a record.
He's talking about changing laws, which of course he can't literally do, but Presidents always claim to do and they do have a lot of influence over Congress.
If Biden wins, there will certainly be a Democratic House and maybe 50:50 odds right now on a Democratic Senate, so he'd likely be able to implement whatever priorities he sees fit.
> I have no clue how Biden can promise to automatically expunge prior convictions if only judges can expunge a record.
Political promises aren't binding. So you can promise whatever. Politicians in general love to promise things that aren't even within the baliwick of the position they're running for. The one that always bugs me is California mayoral candidates promising to fix the schools, when schools aren't a function of city government at all.
I dove into the list of people pardoned by Clinton and I would say most were people who had either served their sentence (or most of it) and had demonstrated true rehabilitation.
The pardon wiped the slates clean for them. That seems like a good thing?
Throwing out a prediction: If the Biden/Harris ticket wins in 2020 and Trump is charged with anything, expect a pardon from the president. People will rage for a bit, get tired, run out of attention span, and move on to the next controversy.
I don't think Biden could do that. It would be as bad as, if not worse, than another 4 years of Trump as president. It would mean that there are no standards by which a president is held accountable, and considering how many lives he has cost and the corrupt things he has done betraying the country, it would make the next Republican presidency that much worse.
Trump is going to get screwed anyway, even if Biden would step that low (he'd risk alienating all the progressives, I doubt he's dumb enough to do this) Trump would still have to answer to the New York DA.
I think its better to err on the side of not punishing people rather than punishing them too much. Pardons provide an escape hatch where we can skip a punishment if it seems manifestly unjust.
>It seems to me that just the pardon power by itself is fundamentally incompatible with democracy and the rule of law.
Says who? And why?
>I imagine that if we can survive and progress long enough to have real democracy and rule of law
Why do you want 'real' democracy? What makes you think that getting rid of other non-democratic institutions, like Congress, like the Presidency, and institute Athenian-style mob rule - will make the world a better place?
I am being facetious, and I get what you mean, but do you honestly think your life would be better if this particular, and relatively minor, aspect of the Presidency would be curtailed?
> but do you honestly think your life would be better if this particular, and relatively minor, aspect of the Presidency would be curtailed?
Why even bother saying this?
Each of us can want / advocate for whatever changes each of us prefers in any given moment.
There's plenty of resources in the world, and within each of us, to want better for, say, our kids; more space exploration; a presidential role with fewer perks; an end to hunger; and our local street to be kept cleaner.
>Each of us can want / advocate for whatever changes each of us prefers in any given moment.
I understand that. I'm saying you need a reason to go through the effort of changing the constitution and a 240 year old tradition. This is why I asked what all that effort in getting rid of the pardon would do for the world. And it seems, the answer is not much if anything at all. So my argument is, maybe find something more worthwhile to concern yourself with?
>It seems to me that just the pardon power by itself is fundamentally incompatible with democracy and the rule of law.
It isn't, it's actually an integral part needed to make the entire thing work. The problem is when it isn't treated with the restraint due to the role it is meant to fulfill. The President is a short-cycle control mechanism. The legislature longer, and the judiciary the longest based on the sheer weight of precedent they need wade through.
Now, interestingly, and somewhat tangentially. There is a moral/traditional controversy over whether the President can legitimately abuse the Pardon power. There is a body of scholarship that hold that the Pardon is meant to be applied only when the President is acting to further the interests of the Nation.
To riff through some examples of how that plays out, (as mentioned elsewhere downthread): Civil War Confederate Amnesty, A-Okay. Carter and the draft-dodgers, a-okay, Clinton pardoning his brother on his last day in office? Absolutely not okay,as it wasn't furthering the interests of the country as a whole. Nor would Trump's pardoning necessarily qualify.
That isn't law though. That's ethos, and tradition.
> I think it’s meant as a “check” on the judicial branch - if the head of the executive isn’t okay with the judicial branch’s dicision.
It's also a check of the legislative branch. If someone's convicted under an unjust law, a pardon can restore justice.
IIRC, appealing to the leader for justice has a long history that predates the US Constitution. IIRC, such appeals have been an important safety valve, and the formalization of the leader's responses have resulted in whole new bodies of law (e.g. Equity came from the King attempting to correct deficiencies in the Common Law in cases that were appealed to him, then delegating the implementation and processing the appeals made to him to members of his court).
It might've been a check when the executive did little aside from protecting from foreign invaders. The terms-of-service for what the executive are has changed. It's not only anti-democratic, it's anti-republic as well.
It's like saying you're a pacifist... except for Tuesdays when you go on a weekly killing spree.
I imagine that if we can survive and progress long enough to have real democracy and rule of law, our present system will be viewed a transitional period that, for all its very real improvements, was still structurally closer to feudalism than actual democracy.